"Displacement and Law in the American City"

Richard Schragger

The literature on displacement comes at a particular historical moment. The processes of urbanization are accelerating in the developing world, while formerly declining city centers in the United States and Europe are experiencing a resurgence. City-based economic growth appears to invite displacement. City economies are characterized by repeated cycles of investment and disinvestment, with the poor, black, ethnic, and otherwise marginal being chased around the metropolitan region by the rich.

What is to be done? Matt Hern is right in What A City is For that displacement seems to be baked into the nature of urban development—perhaps even into the nature of private property and possession itself. The city chases capital, the more mobile the better, hoping to attract and retain businesses or residents who are not currently present in the hopes that these new residents will make the city more prosperous. Land-based elites—Harvey Molotch’s famous “growth machine”—employ urban renewal, code enforcement, highway building, or other direct ways to replace the relatively immobile poor with the relatively more mobile non-poor. Or the city might use more indirect means, adopting policies that harass or discourage the poor, that provide tax breaks or other subsidies for the relatively rich, that limit or eliminate funding for public housing, that enforce historic preservation laws in gentrifying neighborhoods, or that use standard development processes to favor more taxable land uses.

In the United States, two structural forces reinforce these processes, even among the otherwise well-meaning policymaker. The first is the ideology and practice of market primacy: the notion that cities are in a competitive struggle for mobile capital, and that they have no choice but to invest in those amenities and forms of infrastructure that attract and retain the relatively mobile. The second is the reality of state-based federalism: the existence of state and national officials who do not represent the city qua city, but instead represent those who can use the city—taking advantage of its repeated cycles of investment and disinvestment—toward their own ends.

What was New London, Connecticut to do in 2000 in the face of massive unemployment and a steadily shrinking tax base and population? Offered a large urban redevelopment grant by the state, New London exercised its power of eminent domain to condemn a local neighborhood as part of a redevelopment project centered on inducing Pfizer to build its corporate headquarters there.

New London, however, made the mistake of trying to displace a middle-class white woman, Suzette Kelo. Kelo is not your usual victim of displacement—black and poor—and she had some good lawyers from a pro-property-rights organization who had identified four or maybe five conservative justices who were interested in taking a bite out of the regulatory state.

Kelo ultimately lost her case—the battle over eminent domain became a proxy for redistributive government policies more generally, and the left-leaning justices were wary of an opening wedge that would permit judges to determine what redistributive (and regulatory) activities were in the public interest and which ones were not. Legislatures did what the courts would not do, however. The property rights backlash to the Kelo case was severe. Numerous states adopted restrictive laws on the use of eminent domain for economic development purposes. And yet these laws have done nothing to stop redistributions from relatively immobile to relatively mobile taxpayers—the subsidization of large corporations, the building of stadiums, the construction of highways. The economic development project continues.

As the literature on displacement amply illustrates, law plays a central role in authorizing displacement. Even as it strenuously defends property rights, the liberal legal project fails to defend a right to housing or a right to remain in place. The daily eviction crisis in U.S. cities occurs through the machinery of law. The rules are not complicated. Failure to pay rent is the standard ground for removal. The lack of quality affordable housing in the United States is a function of politics, not court rulings.

As writers on displacement have shown—consider Gautam Bhan’s and Asher Ghertner’s books examining the eviction cases in India’s highest court, for example—law is not a straightforward reflection of mobile capital’s political power, even as the courts choose which forms of tenure are legal and which are not—thus deciding who shall stay and who shall go.

So, too, there are aesthetic judgments, as Ghertner observes in the context of New Delhi. The elimination of fire hazards, industrial pollutants, and disease are legitimate ends of the state’s police power—the term in U.S. law for the state’s authority to regulate for the health, safety, welfare, and morals of the populace. But as Justice Douglas wrote in the 1974 case of Belle Terre v. Boraas: “The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Encapsulating the whole of twentieth century American land use law, Douglas concluded that “[a] quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs.”

Slum clearance has always been defended by invoking family values, even as it made way for highway and downtown business redevelopment. The elimination of blight is an end to itself—the unhealthy “slum” the target of activists, planners, and good government-types throughout the ages. Jane Jacobs famously criticized this thinking in her Death and Life of Great American Cities. As she noted, progressive planners thought that poor people only needed less disorder and more grass to be happier and healthier—their goal was to get the people off the streets. But it turns out that the city beautiful is the city bulldozed. Though the suburb became the American law’s aesthetic ideal, it was not the people’s.

Richard Schragger joined the Virginia faculty in 2001 and was named the Perre Bowen Professor in 2013. His scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy and the constitutional and economic status of cities. He also writes about law and religion. He has authored articles on the Establishment and Free Exercise clauses, the role of cities in a federal system, local recognition of same-sex marriage, takings law and economic development, and the history of the anti-chain store movement. Schragger has published in the Harvard, Yale, Chicago, Virginia, and Michigan law reviews, among others. He teaches property, local government law, urban law and policy, and church and state.

Schragger received an M.A. in legal theory from University College London and received his J.D., magna cum laude, from Harvard Law School. He was a supervising editor of the Harvard Law Review. After clerking for Dolores Sloviter, then-chief judge of the U.S. Court of Appeals for the Third Circuit, Schragger joined the Washington, D.C., firm Miller, Cassidy, Larroca & Lewin, where he practiced for two years. Schragger has been a visiting professor at Quinnipiac, Georgetown, NYU, Chicago, and Tel Aviv. He was the Samuel Rubin Visiting Professor at Columbia. He is the author of City Power: Urban Governance in a Global Age (Oxford University Press, 2016).